Supporters of the Second

Some good news on the Second Amendment front: Respondents in the Heller case filed their reply brief -- which is quite good -- and Vice President Dick Cheney along with 55 members of the Senate and 250 members of the House (a majority of both houses!) co-signed a brief supporting Respondents. Recall that last month, the Bush Administration filed a disappointing brief supporting the "individual rights" interpretation but recommending the case be remanded to the D.C. Circuit for consideration under a more flexible standard of review. Through outside counsel, the District's brief insists the Second Amendment is a "collective" right covering only members of the organized militia. By contrast, NRA supported the individual rights view.

Two arguments from this week's briefs that caught my eye:

1. Heller's brief highlights the broad reach of current D.C. law (Section 7-2502.02) by reference to a late-70s decision by the DC Court of Appeals (the DC equivalent of a state supreme court) called McIntosh v. Washington, 395 A.2d 744, 755 (D.C. 1978), reading the gun ban as precluding virtually all armed self-defense. As counsel for Heller says (at 54):

   Respondent would not quarrel with a true "safe storage" law, properly crafted to address Petitioners’ stated concerns. But as McIntosh reveals, the city said what it meant and meant what it said in prohibiting armed self-defense inside private homes. The law, as written and defended by the city, is unconstitutional.

2. The Congressional brief (at 36) rebuts DoJ:

   [E]ven if this Court applied a lower “reasonableness” test as the standard of review, the District’s handgun ban is unreasonable on its face. The lower court’s categorical approach in holding a prohibition on handguns to be unconstitutional per se was correct. . . This case involves nothing more than the right of law-abiding persons to keep common handguns and usable firearms for lawful self-defense in the home. Accordingly, no purpose would be served by remanding this case for further fact finding or other proceedings.

Oral argument in Heller is set for March 18th.